The ease in accessibility of sophisticated technology has made check fraud a menace in the recent past. The use of computer scanners and publishing software has made it easy for fraudsters to use the names of other individuals without consent to sign or endorse checks. The government, on the other hand, has stepped up the war on check fraud, but in the process, many innocent people have been left facing fraud charges. At the San Diego Criminal Attorney, we offer defense for people facing check fraud charges. We have addressed the legal definition of check fraud, the elements the prosecution must prove, the penalties, and legal defenses to help you have an in-depth understanding of the intricacies of this crime.
California Check Fraud Laws
As per PC Section 476, check fraud occurs when someone possesses, presents, or attempts to pass a fake or false check. If the name and the signature of the person paying are forged, then it’s considered check fraud too. Even if a check is genuine and someone alters it by changing the dollar amounts and its date, writes an unauthorized name, or uses a fictitious signature, then the check becomes false.
Elements of Crime the Prosecution Must Prove
Check fraud is a wobbler, and the prosecution reserves the right to charge you with a felony or misdemeanor. However, to convict you of this crime, they must prove the following elements:
The defendant attempted to pass a fake or fictitious check
You might not notice a significant difference between a fake and a certified check. However, a fake one is that which is drawn from a bank that doesn’t exist, references to a bank account that doesn’t exist, or one that is signed by a fictitious individual. If you present a real check but whose bank account has been closed, as per PC 476, you haven’t committed any crime. However, it is an offense under other statutes. The prevalent cases of fake checks today involve a forged signature. So, if the prosecution can prove the check you presented violated PC Section 476, then it will be easy to get you convicted.
Representing the check as genuine
If you, as a defendant, had full knowledge that the document you were presenting was altered or fake, then that is enough evidence to convict you. All that is required is to show that you made a representation directly or indirectly, indicating that the check was genuine. The illustration can also be in words or writing.
If you willfully deceive or intend to defraud another party for money or services, then you portray the fraudulent purpose. What is critical about this element is that the prosecution doesn’t have to show that you received the money or services or someone suffered losses. The important thing is to show you had plans or the purpose of acquiring benefits from another person unlawfully.
You are likely to be convicted of this crime if the prosecution can prove that you changed the date, routing number, or amount on the check with the intention of defrauding someone. Erasing or adding content in a check is also altering. Once any of these things have been done, the legal effect of the document is transformed, thus making the act qualify as check fraud.
Penalties for Check Fraud
The crime of check fraud is charged under PC 470 forgery laws, and the charges against you are filed based on your past criminal record and gravity of your offense. You will be charged with a felony check fraud if the amount in question is $950 or higher, and no form of identity theft was involved in your crime. Other ways that you will be charged with a felony is if:
- You have been convicted at least three times for forgery in the past,
- You have at least three prior convictions for violating PC 470 or PC 476 (a), or
- You are a registered sex offender or have a previous conviction for a violent felony charge.
If the prosecution decides to file a felony charge and you are convicted, the penalties are:
- Twelve months sentence in county jail if probation is granted up to thirty-six months,
- County imprisonment for sixteen months, twenty-four months, or thirty-six months,
- A maximum fine of dollars ten thousand,
- A possible check diversion program instead of jail time. The charges in this penalty are dismissed once you have completed the diversion program and compensated the payee for the losses incurred.
When convicted of a misdemeanor charge, you are going to face:
- A fine of up to dollars one thousand, or
- A one year sentence in a San Diego jail
Civil Penalty for Check Fraud
Check fraud can get you charged in a civil court as per Civil Code 1719. When convicted of as per PC 476, you can face penalties under California CC1719. The penalties include paying the payee the full amount of the check and three times its amount. The amount should not be below dollars one hundred ($100) or exceed dollars one thousand five hundred ($1500). You can avoid these penalties by the payee, allowing you to pay restitution in full amounts plus a service fee of not more than twenty-five dollars for a bad check and another service fee of $35 for all the ensuing false checks you might have presented.
Legal Defenses for Check Fraud
You can avoid the foregoing penalties by using various legal defenses in your case. Arguments can be made best by an experienced criminal attorney hence the need to retain the services of one. Below are some of the defenses that you can apply:
Lack of intent to defraud
The fraudulent purpose is a critical element the prosecutor relies on to obtain a conviction. It’s, therefore, your primary goal to show the jury that you had no intent to defraud. You can do that by arguing that you were not planning to deceive the payee to get money or other benefits. If you had no plans to commit the crime, then you cannot be guilty of it. Having a reasonable attorney when using this defense is important because he or she will evaluate the case and find a way to show the court that you were not the person who made the fake check, or you had no reason to believe the check was not real.
Lack of knowledge
During prosecution, the prosecuting attorney must show the court that you were aware that the check was false or altered. Arguing that you lacked knowledge about a bank account with insufficient funds or you were not informed about the falsity of the check will get the charges dismissed or dropped.
If indeed a check appears to have been altered with some content erased, added, or even changed, it doesn’t mean it is a counterfeit check as long as the owner of the document authorized the changes. But, if the date, name, signature, or amount is altered without the consent of the person who has the powers to grant that permission, then that is check fraud. This form of defense applies in check fraud cases involving employers-employees or spouses.
When you are being arrested for violating PC 476, you might make some incriminating statements to the arresting officer, comments which the prosecuting attorney might decide to use against you in court. In such a scenario, your attorney can argue that there was a violation of your Miranda rights. These rights are entitled to every citizen under arrest. The rights include entitlement to a legal representative, the right to remain silent, and the right to have your attorney present before answering queries from an arresting officer. If a statement you gave before the Miranda rights were recited to you is being used against you, then it cannot stand as evidence in court. The incriminating statement will be removed from the evidence.
Mistaken identity or false accusation
The defense applies if you passed on a check that wasn’t genuine, but you were not aware because it had been passed on to you by somebody else. You are not the person who should take the blame. Lieu, the person who altered the, changed the document and gave it to you should be the one penalized. False accusation is also a frequent legal defense in instances were people who harbor grudges against you or want revenge set you up using a fake check document. If the prosecution is relying on circumstantial evidence, having a witness or robust evidence to prove mistaken identity or false accusation will get the charges reduced or dismissed.
If your attorney has expert witnesses and evidence that can be used to show that you were in a state of unsound mind when you committed an act of fraud, you can be exonerated of the charges.
Another form of defense that can apply in check fraud cases is mitigation. Your attorney enters into mitigation with the prosecution so that they can try to come into an agreement to avoid filing charges in court. To enhance the chances of the mitigation becoming successful, your attorney should cooperate with the prosecution by giving them all the information they need to prove your innocence, including financial records and a character letter exhibiting your clean criminal record.
Consequences of Check Fraud Conviction
Check fraud offenses are a growing menace, and the government is doing everything in its powers to curb these crimes. Some of the things the state is doing in addition to penalties are:
- Denying convicts the ability to renew licenses
- Denying them the ability to find employment and
- Denying convicts a chance to get and retain favorable immigration status.
The reason why convicts of check fraud lose the ability to get preferable immigration status is that the offense is deemed an aggravated felony based on the U.S immigration laws. Therefore, if you are a non-citizen of the United States and wish to be admitted to the country or become a citizen through naturalization, then you should avoid a PC 476 conviction. A conviction means you are subject to deportation, or you might be denied citizenship.
Expungement for Check Fraud
Your offense can be deleted for submitting a fake or fictitious check, but only after completing your probation. Expungement means clearing your criminal record. A misdemeanor or felony check fraud can be expunged under PC 1203.4. The process of expungement begins with the filing of a petition with the office of prosecution under this statute. Not everyone is eligible for expungement, so if you qualify, optimize the opportunity during the hearing of the petition to ensure it is granted. If the appeal is granted, the court withdraws your conviction, and all the penalties that follow a guilty finding are set off. You, therefore, don’t have to worry anymore about your potential employers finding out your criminal past because it will be erased from your record.
Check Fraud and Other Related Offenses
Many other crimes are similar to PC 476 check fraud either because they are charged in place or alongside the other. These crimes include:
PC 476 (a) bad check statutes
The law falls under PC 476, article (a), and it is violated when someone writes or passes a check on purpose, knowing that there is insufficient money to clear the account, and with the intent to defraud the payee. Often, you will be charged with bad check if you write someone a check and it bounced because there was insufficient amount to clear the full check amount. Check fraud, on the other hand, deals with forgery, but the prosecution can charge you with both offenses in individual events.
Some of the possible legal arguments you can make to fight back check charges include:
- You post-dated the check
If you had no purpose or plans to defraud the payee, you have not violated PC 476 (a). Therefore, you can argue that you post-dated the document, or you informed the payee you had insufficient funds, so they should hold on to the check until the account gets sufficient funds to clear the full amount of the check.
- You had a reasonable belief that the funds in your account were sufficient, or the bank could extend an overdraft.
It is possible to defend yourself by arguing that you were convinced beyond doubt that you had enough money in the account, that the bank would cover the deficiency in the form of an overdraft, that you simply assumed the amount in your account was sufficient but didn’t make an effort to confirm the doubts, and that the amount in your bank account was enough to clear the account, but the bank made a mistake. Making these arguments will prove that you had no fraudulent intentions.
- The act wasn’t willful
If you were acting in duress with someone coercing you by use of violence, threats, or bad fraud, then you have not committed any crime because you didn’t violate PC 476 (a).
Other defenses that can apply include you stopped the payment in good faith because you believed the payee was not entitled to the money, or you can argue you are falsely accused.
If the check you were passing or presenting amounts to $950 or less and you have a clean criminal record, the prosecution will choose to charge you with a misdemeanor. The penalties for being convicted for this charge are a sentence not exceeding one year or a fine not more than dollars one thousand.
When the prosecutions opt to charge you with a felony bad check offense, if you are found guilty, you will be subject to a sentence of up to 36 months state imprisonment and a fine of not more than $10,000.
Aside from these penalties, the payee might sue you in a civil court where you are forced to pay the full amount of the check and additional fees amounting to not more than dollars fifteen hundred.
PC 470 forgery statutes
Forgery laws in California focus on documents other than those stated in PC 476. Check fraud focuses on documents like bills, notes, and checks. Forgery law, on the other hand, prohibits altering or falsifying of materials other than a check, bills, and notes without permission of the owner with intent to defraud. PC 470 focuses on falsifying a will, forging the handwriting, or counterfeiting a seal of another party and signing the name of another person on a document. Therefore, if you are arrested for forging a person’s name on a check, then you will be charged with a violation of PC 476 & 470. When it comes to conviction, however, you can only be convicted for one offense. The prosecution opts to bring both charges against you so that if one is dropped, they are left with the other.
Some of the legal defenses for violating forgery law include:
- False accusation
- Lack of intent to defraud
- The document in question could not deny anyone their constitutional rights.
When it comes to penalties, forgery law punishment is similar to that of check fraud laws.
PC 487 grand theft
As per California theft laws, it is illegal to take someone’s money without their consent. It would become grand theft if the property or amount were stolen totals to dollars nine hundred and fifty or higher. So, whenever you pass a fake check which value is dollars nine hundred and fifty to obtain money or property from a payee, then you have committed both grand theft and check fraud.
When fighting grand theft charges, you must assert that you lacked intent to defraud, you are the rightful owner of the property you are being accused of stealing, you had the consent of the owner, and you are facing false accusations. Coming up with such arguments will protect you from conviction.
In the event you are convicted under PC 487 for a misdemeanor, you will spend no more than one year behind bars in county jail. When found guilty for a felony charge, you will be incarcerated for sixteen months, twenty-four months, or thirty-six months. You will face additional felony penalties like state imprisonment if the amount of theft is more than dollars sixty-five thousand ($65,000). Enhanced penalties in these cases involve further state imprisonment.
Petty theft law
The difference between grand theft and petty theft is the amount stolen. When a person takes money or property amounting to $950 or less without the consent of the owner, they have committed petty theft. Also, if you pass, or use a false or fictitious check to obtain money or property from a payee whose value is nine hundred and fifty dollars or below, then you have committed petty theft alongside check fraud.
Some of the legal arguments you can put up against petty theft charges include:
- You acted with permission from the owner of the property
- You have a claim of right over the property, or
- You had borrowed the property you are being accused of stealing.
The prosecution attorney will charge you with a misdemeanor offense. If there are guilty findings for a misdemeanor charge, the penalties are county imprisonment for not more than 180 days and a maximum of dollars one thousand in fines. You can also get summary probation instead of incarceration. If you didn’t succeed in committing the theft, the court imposes half of the sentence that they could have imposed if you had succeeded in obtaining the money or property.
Find a San Diego Criminal Lawyer near Me
A check fraud charge needs to be taken seriously because of its severe consequences. Even the slightest act can leave you with a criminal record that might make it impossible for you to find the right school or college, meaningful employment, or even a loan. Instead of waiting until a criminal record begins to affect your future, it is advisable to contact the San Diego Criminal Attorney. We have experience dealing with cases of fraud hence suitable to handle your situation to help you avoid a conviction, and if a sentence is inevitable, we will assist in having the penalties reduced. Contact us at 619-880-5474 to speak to one of our check fraud attorneys today.
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